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Filter: Litigation
Disclosure of medical records vs the right to privacy

14 June 2021,  Neo Madlala

A client recently fell over boxes standing in the aisle in my store. He is suing me for damages claiming... that the head injuries he sustained from the fall resulted in him being fired from work. I’ve heard from another source that he was dismissed because of a history of alcohol and drug abuse and that he has been in and out of rehabilitation. We’ve requested access to his medical and psychological reports, but his attorney refuses claiming medical privilege. Surely, this cannot be right, particularly if these can prove that there were other factors leading to his dismissal?

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2649
Article
No more excuses... we know you got that letter of demand

01 April 2021

As always, technology has ensured that there is never a dull moment.With the new and exciting development regarding registered letters... of demand being sent by registered email, consumers can no longer use the excuse that they did not receive their letter of demand.In a ground-breaking judgement, the High Court in Pretoria has very recently accepted the digitally registered delivery of a Section 129 final letter of demand for payment as the basis for granting a default judgment. In the past, consumers received these notices through registered post, with many claiming never to have received it. However this method of correspondence can now be replaced by a letter of demand that's sent and received digitally.As we all know, a letter of demand through registered e-mail or registered SMS is much more difficult to ignore, as it is sent directly to  our cellphone number or e-mail address. This means that it can reach us wherever we are, without us ever having to visit the post office. As the plaintiff argued in this recent case, the digital sending and receipt of a letter demand allows for consumers to get the information that they need to make payment arrangements with the creditor, much quicker - which in turn avoids legal costs and negative credit ratings.In addition, the technology of today allows for an instant electronic certificate and detailed audit report to be issued as evidence that the relevant communication had been sent and delivered by SMS or e-mail – providing exactly the same legal status as traditional registered post.It can even go further to actually show the sender that the recipient actually read the notice. A consumer can therefore not use the excuse anymore that they never received the notice, which will ensure that there are no more unnecessary delays in litigation.

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2517
Blog
Dismissed for refusing the Covid-19 vaccine - is that fair?

17 March 2021

With the words “I have been vaccinated!” being common among our healthcare workers these days, it is natural to start... wondering whether your job may be at risk for refusing to receive the COVID-19 vaccine. Right now there is no law in South Africa that obligates an employee to receive the Covid-19 vaccine.  In fact, there is no legislation which regulates the circumstances under which an employer may force an employee to undergo medical treatment as opposed to medical testing. Medical testing is defined by the Employment Equity Act to mean a test, inquiry or other means designed to establish an employee’s medical condition.Medical testing of an employee is prohibited unless legislation permits or requires the testing or it is justifiable in the light of medical facts, employment conditions, social policy, the fair distribution of employee benefits or the inherent requirements of a job. The Constitution of the Republic of South Africa guarantees our rights to bodily integrity, privacy and security over one’s body. However, it is common knowledge that our constitutional rights are not absolute and may be limited under certain circumstances. An employee may refuse to take the vaccination over concerns of possible adverse reaction to the vaccine, religious and cultural beliefs and the employer may not unfairly discriminate against an employee who refuses to receive the Covid-19 vaccine for whatever personal and/or medical reasons.  Notwithstanding the above, an employee may be compelled to receive the Covid-19 vaccine where failure to do so may create a greater risk to the public health. This may be in instances where the employee’s duties call for heightened levels of contact with the general public. In this regard, employees must be aware that employers are obligated to provide and maintain a safety working environment in so far as it is reasonably practicable to do so.  Consent remains essential in matters involving the personal affairs of the employee, and the employee must have given informed consent before any medical treatment is administered. An employer who therefore dismisses an employee for refusing to receive the Covid-19 vaccination may be under a strenuous duty to prove that the instruction to the employee was a reasonable one and that the failure by the employee to follow such an instruction constituted insubordination which warranted the dismissal. The consequence of this act of insubordination needs to be that it creates a greater risk to the health of other employees and renders it nearly impossible for the employer to maintain a safe working environment as required by law.While there is a lacuna in our employment legislation for the compulsory administration of the Covid-19 vaccine, such treatment may be permitted by the employment conditions, social policy or the inherent requirements of a job. This requires that a thorough balancing of the employer’s obligations in terms of maintaining safety in the working place must be done against the conflicting rights of the employees not to be unfairly discriminated against or victimised for exercising their rights in terms of the applicable legislation.In this, instance if the Employer can prove on the specific facts of this case that dismissal was an appropriate and fair sanction, then the dismissal would be fair. Generally though, discipline ought to be imposed in a corrective and progressive manner which means that dismissal would only be reserved for the gravest of offences.

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Blog
The final say on business interruption insurance and Covid-19

16 March 2021

I’ve been following the media reports relating to the Café Chameleon case and their claim that their business interruption insurance... covers losses suffered due to Covid-19. The last I heard was that this case was being appealed by the insurer. I have a similar argument going with my insurers, and would like to know whether there is any finality yet on the matter.

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1298
Article
Can a settlement agreement override fair tender procedures?

10 February 2021

After losing a tender, we lodged a complaint with the department against their awarding of the tender to a bidder... who we are aware operates in a less than reputable fashion. The department informed us they would cancel the tender. Subsequently we have heard that although the tender was cancelled, the department wants to enter into a settlement agreement with the bidder to avoid litigation. Surely such a settlement agreement cannot override fair tender procedures?

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1150
Article
When floods damage property, who is liable? Owner or tenant?

01 February 2021,  Jaco Van den Berg

With large parts of the country having recently been flooded due to heavy rainfall, many people have suffered damage to... their property.Naturally, when rental property gets damaged due to rain or floods, the question then comes up of who will have to pay for the repairs? The tenant or the owner?The general rule is that the risk and liability involved with immovable property will always be that of the owner.This means that the owner of the property will be responsible to repair damage to the structure or permanent fittings to the property. The owner will have to repair any damage caused by acts of nature, which is outside of human control, such as floods, violent storms, earthquakes and other natural disasters.The tenant will only be liable for damage caused to the property by his or her negligence. For example, if the tenant negligently causes a fire in the kitchen and burns the property down, the tenant will be liable for the damage caused to the property.With property in a sectional title scheme, the position is regulated by the Sectional Title Act. In terms of section 37 of the Act, the body corporate is responsible to repair damage to the common property. The roofs, outside walls and foundations all fall under the common property and therefore if there is water damage due to rain or floods, the body corporate will have to pay for the repairs. To summarise the position, the person who caused damage to immovable property will be liable to pay for the repairs. In the case where the damage caused is no one’s fault, such as in the case of floods or natural disasters, the owner of the property will be liable for the repairs.

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Blog
Prescription and surety don’t always play well together

06 January 2021,  Jaco Van den Berg

Our company is owed money by one of our contractor companies who we helped with finance and provided us with... personal sureties by the shareholders as security for the transaction. They have been making promises that they will pay for some time and we left it, but now we are getting worried about prescription. We are also unsure whether if we act against the sureties, prescription will be halted for the contractor or may continue and we lose our claim against the company itself. Can you advise?

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2414
Article
Is government liable for an accident at a private nursery school?

10 November 2020

I recently saw an article in the news saying that the Western Cape Department of Social Development was not responsible... for injuries caused to a child in a day care funded by the Department. Surely this cannot be right and the Department should be responsible? 

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Article
Can I institute legal action on behalf of my body corporate?

07 June 2019,  Corlia van Zyl

I live in a sectional title that used to have beautiful common property areas. The last year or two though,... owners have been causing damage to these garden areas and walkways and the body corporate is doing nothing to stop it. Can I take legal action against the owners that are causing the damage or can only the body corporate do something?

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1402
Article
Japie Kruger on MedFM: illegal business next door

02 May 2019

It's no fun and games when a business opens its doors illegally in a residential area. Yet there is legal... recourse you can take! Japie Kruger discusses on MedFM 101.4 FM.

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1213
Article
Adriaan van Rensburg on MedFM: decriminilisation of marijuana

14 November 2018

This month Adriaan van Rensburg, your personal criminal law advisor, spoke on MedFM 104.1 about the decriminilisation of marijuana use... and how it actually affects our daily lives.

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1117
Article
Is the Small Claims Court a solution to get my money?

10 September 2018

I’m currently self-employed and do handyman jobs to put bread on the table. I recently did some repair work for... a client for just over R10,000, but the client has still not paid me and refuses to answers my calls. I can’t afford an attorney but have heard that I can go to the Small Claims Court myself. How does the Small Claims Court work?

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1064
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